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2011 DIGILAW 225 (RAJ)

Satish Jiyani v. The State of Rajasthan

2011-02-01

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - The instant criminal revision petition under Section 397 read with Section 401 CrPC is preferred by the petitioner husband against the order dated 31.10.2009 passed by learned Additional District and Sessions Judge (Fast Track), Balotara, Camp Barmer in Criminal Revision Petition No. 43/2008, whereby the revision petition filed by the non-petitioners, wife and daughter of the present petitioner, was allowed and the total monthly maintenance allowance awarded by the learned Chief Judicial Magistrate, Barmer in Criminal Misc. Case No. 25/2006 vide order dated 23.09.2008 was enhanced from Rs. 3000/- per month to Rs. 4000/- per month to be payable from the date of filing of the application for maintenance. 2. The main challenge to the impugned order dated 31.10.2009 is on the ground that as per the provisions of Section 125 CrPC, the total amount of maintenance which can be awarded to wife is only upto Rs. 2500/- per month and that too is only after the recent amendment in Section 125 CrPC regarding the amount of maintenance. As per learned counsel for the petitioner, earlier the maximum limit was Rs. 500/- and at present it is Rs. 2500/- per month, thus, in any case, the revisional court was not empowered to enhance the maintenance amount beyond the limit prescribed under the law, therefore, the order of the revisional court cannot be sustained and the order awarding the maintenance allowance of Rs. 3000/- in favour of the non-petitioner wife by the revisional court is totally improper exercise of powers vested in it under Section 397 CrPC. 3. The second challenge to the impugned order is that the maintenance should be awarded from the date of passing of the order and not from the date of filing of the application for maintenance. 4. Per contra, learned counsel appearing on behalf of the non-petitioners, wife and daughter of the present petitioner, and contended that by way of amendment to Section 125 CrPC, which is a Central Act, in sub-section (1) the words "not exceeding five hundred rupees in the whole" have been deleted by the Code of Criminal Procedure (Amendment) Act, 2001 with effect from 24.09.2001 and thus, there is no maximum limit so far as the amount of maintenance to be awarded to the wife under Section 125 CrPC is concerned. 5. I have considered the contentions made by learned counsel for the parties. 6. 5. I have considered the contentions made by learned counsel for the parties. 6. It is not in dispute that the State Government by way of amendment to Section 125 CrPC enhanced the amount of maintenance to Rs. 2500/- in the whole, whereas by way of amendment in the Central Act, the words "not exceeding five hundred rupees in the whole" have been deleted from Section 125 CrPC and in view of the judgment of the Hon'ble Supreme Court in the case of Manoj Yadav v. Pushpa @ Kiran Yadav & Ors., in Criminal Appeal No. 107 of 2011 , the issue is now no more res integra because the Hon'ble Apex Court in the aforesaid judgment held that after the amendment to Section 125 CrPC, which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words "not exceeding five hundred rupees in the and whole", all State amendments to Section 125 CrPC by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid. Thus, in view of the judgment passed by the Hon'ble Apex Court in the aforesaid case, it cannot be said that the revisional court could not have enhanced the amount of maintenance exceeding Rs. 2500/- per month in the whole. Accordingly, so far as the first argument advanced by the learned counsel for the petitioner is concerned, the same is devoid of any force. 7. The second contention raised by the learned counsel for the petitioner is that the order of maintenance should be made effective from the date of passing of the order and not from the date of filing of the application. Although in this regard there is a contrary view also, however, the learned trial court or the learned revisional court can grant the maintenance from the date of filing of the application under Section 125 CrPC. Although in this regard there is a contrary view also, however, the learned trial court or the learned revisional court can grant the maintenance from the date of filing of the application under Section 125 CrPC. In this particular case the application was presented in the trial court on 23.01.2006 and it was decided on 23.09.2008, thus, the application for maintenance was decided by the trial court within three years and further the revision was filed on 04.11.2008 and it was decided on 31.10.2009, therefore, no inordinate delay can be said to have occurred in deciding the application for maintenance as well as the and revision petition, therefore, in my view, the order of the revisional court to grant the maintenance from the date of submission of the application cannot be said to be improper, irregular or illegal. 8. Learned counsel for the petitioner also submits that the revisional court should have remanded the case back to the trial court for proper adjudication because the revisional court has no jurisdiction to enhance the amount of maintenance, rather the revisional court should have remanded the case back to the trial court for redetermining the quantum of maintenance allowance. 9. Per contra, learned counsel appearing for the nonpetitioners submits that the revisional court can pass any order which the trial court can pass in a particular case, therefore, it was not necessary for the revisional court to remand the case back to the trial court for redetermining the maintenance allowance as the revisional court itself can enhance the amount of maintenance in view of the powers conferred upon it under Section 397 CrPC. 10. I am of the view that the revisional court has the same powers as that of the trial court, therefore, in my view the learned revisional court has committed no illegality, impropriety or irregularity while passing the impugned order dated 31.10.2009 and and accordingly, the same does not require any interference. Further, the learned revisional court while enhancing the amount of maintenance, appreciated all the relevant facts and as per the admission of the petitioner-husband in the reply regarding his monthly income being Rs. 11600/-, the learned revisional court was justified in enhancing the maintenance allowance, which cannot be said to be excessive. 11. In view of the discussion made above, the order passed by the learned revisional court does not suffer from any impropriety, irregularity or illegality. 11600/-, the learned revisional court was justified in enhancing the maintenance allowance, which cannot be said to be excessive. 11. In view of the discussion made above, the order passed by the learned revisional court does not suffer from any impropriety, irregularity or illegality. Accordingly, this revision petition is dismissed and the order dated 31.10.2009 passed by the learned Additional District and Sessions Judge (Fast Track), Balotara, Camp Barmer in Criminal Revision Petition No. 43/2008 is maintained.Revision Dismissed. *******